Citation Nr: 1524176
Decision Date: 06/05/15 Archive Date: 06/16/15
DOCKET NO. 10-36 193A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to service connection for migraine headaches.
REPRESENTATION
Appellant represented by: Oklahoma Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
D.M. Casula, Counsel
INTRODUCTION
The Veteran served on active duty from June 1973 to June 1976.
This matter come to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA).
In February 2011, the Veteran testified at a local hearing before a Decision Review Officer (DRO) at the RO. In December 2013, the Board remanded this matter for further evidentiary development. In November 2014, the Board found that there had not been substantial compliance with its prior remand directives regarding the claim for service connection for migraine headaches and remanded that issue for further development, to include obtaining another medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). The record reflects that a VA examiner's opinion was obtained in January 2015; however, for reasons discussed below, the Board concludes there was not substantial compliance with the remand directives of November 2014. Stegall v. West, supra.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
In the prior remand of November 2014, the Board found that because the VA examiner (in February 2014 and July 2014) did not specifically state that the VA and private treatment records noting findings of chronic headaches were reviewed, and also did not identify other possible etiologies for the Veteran's claimed headaches, the February 2014 and July 2014 addendum VA opinions failed to fulfill the remand instructions, and were inadequate. The Board also found that because the February 2014 and July 2014 opinions did not, in providing rationale, cite to the conflicting findings on treatment; they were inadequate and not compliant with the remand instructions. In the November 2014 remand, the Board specifically directed that the record should be returned to the VA examiner who conducted the February 2014 examination of the Veteran to reconcile the conflicting reports regarding whether or not the Veteran has a current migraine headache disability, and if so its likely etiology (specifically whether it is related to his service).
In the prior remand, the Board highlighted two specific medical records, including a June 1978 medical record from Medical Neurologists Inc., noting that Veteran reported he used to have minor headaches over the years but never had much of a problem until the previous month, when he had a severe headache and had to go to the emergency room. His headaches were found to be most likely on a vascular tension basis. Additionally, in an August 2010 treatment record, a chiropractor stated that the Veteran had suffered with bad headaches and other pain symptoms since the motorcycle crash in service; he had head and neck pain about 99 percent of the time and extreme pain at least once a week. The chiropractor opined that the Veteran's injuries, impairments and disabilities set forth in his diagnosis reports were as likely as not due to and a consequence of his service.
In January 2015, a VA examination addendum opinion was obtained (from the same medical examiner from February 2014) Therein, the VA examiner noted review of the Veteran's medical records downloaded in VBMS, and that during the VA examination in February 2014, the Veteran did not complain of any headaches. The VA examiner opined that the Veteran did not have current migraine headaches, traumatic brain injury related headaches, nor a headache related disability.
Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, as noted in the prior Board remand of November 2014, under governing case law, for the purpose of establishing service connection, the existence of a current [claimed] disability is shown when such disability is shown at any time during the pendency of the claim. See McClain v. Nicholson, 21 Vet App 319 (2007).
In view of the foregoing, after reviewing the VA addendum opinion of January 2015, the Board concludes that the opinion rendered was inadequate, because it did not attempt to reconcile conflicting reports (i.e., a June 1978 diagnosis of vascular tension headaches and an August 2010 private chiropractor opinion regarding the etiology of the Veteran's chronic headache disability) regarding whether or not the Veteran had a current migraine headache disability. Thus, although further delay is regrettable, a supplemental medical opinion is warranted.
Accordingly, the case is REMANDED for the following action:
1. Arrange for the VA examiner who provided the 2014 and 2015 VA examination/opinions to review the record and reconcile the conflicting reports noted above regarding whether or not the Veteran has a current migraine headache disability, and if so its likely etiology (specifically whether it is related to his service). The claims folder (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination/interview of the Veteran, the examiner must offer opinions that respond to the following:
(a) Does the Veteran have a current migraine headache disability? The examiner should acknowledge that under governing case law for the purpose of establishing service connection, a "current disability" is shown when such disability is diagnosed at any time during the pendency of the claim, from November 2008 to present. Whether or not a current migraine headache disability is found, the rationale for any conclusion reached should cite to supporting clinical data, and account for any findings in the record to the contrary, specifically, the August 2010 chiropractor's notation regarding a chronic headache disability.
(b) If a current migraine disability is found, the examiner should further opine whether such disability is at least as likely as not (50 percent or greater) related to the Veteran's service and/or events therein. The examiner must explain the rationale for the opinion in detail. If an opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify, and explain why this is so.
If the original VA examiner (from 2014/2015) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted.
2. Thereafter, review the claims folder and readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), afforded an opportunity to respond, and the case should then be returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).